"Ingenious Argument" or a Serious Constitutional Problem? A Comment on Professor Epstein's Paper

In his observations about IRBs, Professor
Richard Epstein makes persuasive arguments about the dangerous reach of the IRB
laws, but he prefaces this policy analysis with a brief excursus into
constitutional law that requires some comment. His view is that the constitutional debate over IRBs arises not so much
from a substantial constitutional problem as from “ingenious arguments.”[1] Yet this
conclusion rests on mistaken assumptions—both about the IRB laws and about the
constitutional objections—and because so much is at stake in the constitutional
question, it is necessary to point out the inaccuracies.

The first set
of mistaken assumptions relates to the IRB laws.[2] Professor
Epstein doubts there is any serious constitutional problem with the IRB laws,
and certainly if they are understood in accord with popular assumptions about
them, the constitutional issues are not as sharp as some of us have
suggested. The laws, however, repay careful
study.

On the question
of the obligation of law, for example, it is taken for granted by Professor
Epstein that the force of the IRB laws rests entirely on conditions that the
federal government places on its research grants.[3] In fact, the government ensures compliance
with the Common Rule by relying not only on these conditions but also on state
negligence law.[4] The federal government no longer overtly
pressures universities, as a condition of federal funding, to apply IRBs to
research that lacks federal funding, but the government was able to abandon
this requirement precisely because it had earlier used its conditions on
research to elevate IRB licensing as the standard of care for research. It could therefore rely on state negligence
law to induce universities to apply IRBs to all human subjects research, regardless
of the source of funding.[5] As a result, although the conditions
requiring the use of IRBs remain significant, and although they are probably
unconstitutional, the most far reaching constraint comes in the form of state
negligence law. This is clearly a matter
of state action and, if only on this account, one cannot easily conclude that
the IRB laws lack sufficient obligation of law to pose a constitutional
problem.

Professor
Epstein is also mistaken about the IRB laws when he assumes that they concern
conduct rather than speech or the press. This is certainly the popular view of the matter, and it is true that
the government carefully drafted its regulations to apply to “research.”[6] Yet the regulations define research as a
“systematic investigation” designed to produce “generalizable knowledge,” which
was intended to mean attempts to produce scientific hypotheses.[7] In requiring universities to impose IRBs, the
government even asks the universities to acknowledge that “generalizable
knowledge” is that which is “expressed . . . in theories, principles, and
statements of relationships.”[8] As if this were not bad enough, it is widely
recognized (not least by IRBs and government committees) that a “systematic
investigation” designed to develop “generalizable knowledge” necessarily means
what a researcher “plans to publish” or what is “publishable”—this being part
of the government’s scientific conception of research.[9] Taken together, these details would seem to
suggest that the IRB laws focus on speech and the press. Of course, there is always room for a
contrary perspective, and Supreme Court doctrine only confuses the matter, as I
have argued at length. But when the
government insists that it is regulating that which is “expressed . . . in
theories, principles, and statements of relationships,” it is not unreasonable
to take the government at its word.

A final mistake
about the IRB laws made by Professor Epstein is his assumption that the
concerns about speech are merely incidental—that “the speech interests
implicated in university research (especially in the biomedical area) are often
tangential” or “‘incidental’” to the “major, or at least ostensible, purpose”
of the regulations, which is protecting “health and safety.”[10] This observation is problematic because it
does not adequately acknowledge the application of the regulations to
behavioral research, including purely verbal inquiry in the social sciences,
the humanities, and various professional fields (including law and journalism).[11] More centrally,
Professor Epstein’s assumption about the incidental character of the speech
interests mistakes what IRBs typically do under the regulations: IRBs protect health and safety mostly by
suppressing what is said and printed. Whether acting directly or through various indirect mechanisms, IRBs
deny permission until academics submit to modification and other censorship of
their publications, their questionnaires, and even their conversations.[12] This censorship is the most common activity
of IRBs—probably at a rate of at least 100,000 times a year and, by some
estimates, many times that rate—and it is therefore difficult to conclude that
the censorship is “incidental.”[13] Professor Epstein’s conclusion that the
speech interests are incidental to the goal of “health and safety” is perhaps
most troubling because it ignores the government’s astonishingly broad
conception of health and safety. The
regulations were carefully written to treat disturbing ideas and unsettling
questions as a health risk, and when the law deliberately categorizes
provocative ideas and inquiries as a “health and safety” problem, the concerns
about speech cannot be considered merely “incidental” to the question of
“health and safety.”[14]

These points
about the IRB laws—that they rely on the direct force of law as well as
conditions, that they focus on speech and the press, and that the First
Amendment implications are not incidental—should already be enough to suggest
the seriousness of the constitutional problem. Of course, this is not to say that the IRB laws are necessarily
unconstitutional. Perhaps,
notwithstanding the Supreme Court’s recent language, the government can evade the
First Amendment by using conditions to regulate and even license speech and the
press.[15] Perhaps the states can use the direct force
of law to impose licensing of speech and the press as long as the licensed
activity is defined so broadly that it also includes “conduct.” Perhaps the consequences for speech remain
merely incidental when disturbing speech is defined as a threat to “health and
safety.” Perhaps. But whatever one thinks about such
possibilities, the constitutional problem is sobering.

The second set
of mistaken assumptions involves Professor Epstein’s understanding of the
constitutional objections. Most
generally, he assumes that my analysis of the IRB laws is a claim about the
surface of Supreme Court doctrine and the likely outcome of any litigation.[16] My argument, however, has always been that
Supreme Court doctrine has given the appearance of constitutional legitimacy to
the IRB laws and that these laws thereby reveal why such doctrine needs to be
reconsidered.[17]

More
concretely, Professor Epstein is under the impression that “the major
constitutional attack” on the IRB laws “treats them as a garden-variety form of
prior restraint.”[18] Such an argument would, indeed, be an uphill
struggle. My argument, however,
specifically rejects analysis in terms of prior restraint and instead focuses
on the question of licensing.[19] Although the surface of Supreme Court
doctrine on prior restraint does not distinguish between licensing laws and
judicial injunctions, the cases treat the former more severely, and with good
reason, for licensing is widely recognized as more dangerous than injunctions.[20] It is open to debate whether my argument
about licensing is correct, but given that my articles on the subject focus on
the distinctive character of licensing and how licensing differs from the more
general question of prior restraint, it is puzzling why anyone would suggest
that my argument treats the IRB laws “as a garden-variety form of prior
restraint.” This is exactly what my work
does not do.

Professor
Epstein further mistakes the constitutional objections when he discusses the
distinction between facial and applied challenges.[21] It is true that my argument distinguishes
between First Amendment tests based on the words of the regulations and those
based the words of the persons regulated.[22] It does not address, however, the question of
facial and applied challenges or any other question about the posture of
litigation.

In sum,
although Professor Epstein’s paper is illuminating on the policy question, it is
disappointing on the constitutional problem because it rests on mistaken assumptions. Many commentators have been misled by popular
assumptions about IRBs, but this is all the more reason to dig deeper into the
regulations and the constitutional law and thereby to confront the grim reality.

The danger is
nothing less than licensing of academic attempts to form scientific
hypotheses. It is an assault on freedom
that rises far above ordinary government intrusions and harks back to the fate
of Galileo.[23] The particular constitutional threat is the
licensing of speech and the press—an utterly repressive mode of control, which
was abandoned in the seventeenth century, prohibited in the eighteenth, and
surreptitiously revived in the twentieth. More generally, the constitutional threat arises from the Supreme
Court’s own First Amendment doctrine. In developing its doctrine on speech and
the press, the Court ended up giving the appearance of legitimacy to the very
laws—licensing laws—that the Constitution’s speech and press guarantees were
most clearly designed to forbid.[24] This legitimization of licensing is
disturbing, and how it happened, and how it has been used against academics, is
something that an academic might well take seriously.

2. By which is meant the Common Rule and the
associated regulations and laws, federal and state—not the FDA laws and
regulations. See Philip Hamburger, Getting
Permission, 101 Nw. U. L. Rev.
405, 406, 421 (2007) (link).

4. The Common Rule is the federal regulation that
sets the basic federal standards for the licensing of human subjects research
by IRBs. 45 C.F.R. § 46 (2005). For the pressures felt by universities under
state negligence law, see Research on
Human Subjects: Academic Freedom and the
Institutional Review Board, Academe: Bull. of the Am. Ass’n of U. Professors,
Sept.–Oct. 2006, at 55, 60 (link). See also Hamburger, supra note 2, at 445–48.

11. For the way IRBs have silenced students and
academics in journalism schools, see Hamburger, supra note 2, at 471.

12. IRBs will protest
that they usually do nothing more intrusive than adjust informed consent documents,
but that is precisely the point, for control over informed consent is one of
the key mechanisms by which IRBs impose censorship. IRBs often spell out their restrictions in
the informed consent documents that IRBs require researchers to give to human
subjects. Accordingly, a process that
sounds as innocent as the informed consent obtained by a doctor from his
patient turns out, in fact, to be a mechanism for suppression of speech and the
press. Id. at
433. For the sharp differences between
medical informed consent and the informed consent required by IRBs, see id. at 438–39.

14. For the treatment of “sensitive” questions
under the IRB laws, see id. at 439,
460–63.

15. For suggestive language about the
constitutional limits regarding the government’s use of conditions on speech in
academic institutions, see Rust v. Sullivan, 500 U.S. 173, 200 (1991) (link)
(“[T]he university is a traditional sphere of free expression so fundamental to
the functioning of our society that the Government’s ability to control speech
within that sphere . . . is restricted by the vagueness and overbreadth
doctrines of the First Amendment.”). See also Rumsfeld v. F.A.I.R., 547 U.S.
47, 60 (2006) (link) (“Because the First Amendment would not
prevent Congress from directly imposing the Solomon Amendment’s access
requirement, the statute does not place an unconstitutional condition on the
receipt of federal funds.”); Hamburger, supra
note 2, at 445, 451.

19. The very title of Getting Permission indicates its main theoretical point: that licensing differs from other prior
restraint because it requires one to get permission. Hamburger, supra note 2, at 405 passim.